RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3697-18T2 A-3698-18T2
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
K.A.C. and R.G.,
Defendants-Appellants. ______________________________
IN THE MATTER OF THE GUARDIANSHIP OF I.L.G., A.M.G. & R.G., JR.,
Minors. ______________________________
Submitted June 1, 2020 – Decided July 6, 2020
Before Judges Rothstadt, Moynihan, and Mitterhoff.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-0117-19. Joseph E. Krakora, Public Defender, attorney for appellant K.A.C. (Robyn A. Veasey, Deputy Public Defender, of counsel; Ilea Anne Kozak, Designated Counsel, on the briefs).
Joseph E. Krakora, Public Defender, attorney for appellant R.G. (Robyn A. Veasey, Deputy Public Defender, of counsel; Bruce Pozu Lee, Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Amy Melissa Young, Deputy Attorney General, on the briefs).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors A.M.G. and R.G., Jr. (Meredith Alexis Pollock, Deputy Public Defender, of counsel; James Dey Harris, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor I.L.G. (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Rachel E. Seidman, Assistant Deputy Public Defender, of counsel and on the brief).
PER CURIAM
In these consolidated appeals, defendants K.A.C. (Kim) and R.G. (Rick)
appeal from an April 12, 2019 guardianship judgment that terminated their
parental rights to their three special needs children: A daughter, I.L.G. (Iris),
born in 2014; another daughter, A.M.G. (Anna), born in 2016; and a son, R.G.,
A-3697-18T2 2 Jr. (Ricky), born in 2018.1 On appeal, defendants argue that plaintiff, the
Division of Child Protection and Permanency (Division) failed to prove the
four prongs of the best interest of the child test as set forth in N.J.S.A. 30:4C-
15.1(a). In addition, Rick argues that the trial judge impermissibly considered
evidence of an alleged threat he made against another judge and that he
received ineffective assistance of counsel (IAC). We find no merit to these
arguments and affirm, substantially for the reasons expressed by Judge
Francine I. Axelrad in her comprehensive oral decision placed on the record on
the date she entered the challenged judgment.
The Division's involvement with Kim began in 2010 and related to Kim's
older children from a prior relationship. Due to Kim's substance abuse issues,
those children were removed from Kim's care after she overdosed on heroin
while alone with her young children. Those children were eventually placed in
the care of their deceased father's mother under a Kinship Legal
Guardianship.2
In this action, Iris and Ricky were removed from defendants when Kim
and the two children tested positive for narcotics at their respective births and
1 We use initials and fictitious names to protect the confidentiality of the participants in these proceedings. R. 1:38-3(d). 2 See N.J.S.A. 3B:12A-1 to -7.
A-3697-18T2 3 the children experienced withdrawal symptoms. Anna was removed from her
parents when Kim attended a drug treatment program with Anna while under
the influence. In all three situations, Rick refused to acknowledge that Anna
was abusing her medications and other drugs. Rick maintained then, as he did
throughout this litigation, that Kim was capable of caring for their children.
Both parents refused to acknowledge that any of their children suffered from
diagnosed issues or required any treatment. 3
When Iris was born, she and Kim tested positive for opiates. Iris
remained in the hospital for twenty-two days and was diagnosed with neonatal
abstinence syndrome. The Division was alerted, and during its ensuing
investigation, Kim told caseworkers that while she was pregnant she had taken
oxycodone from an old prescription that had been prescribed for her back pain.
When Rick was advised that Iris needed treatment for withdrawal
symptoms, Rick "didn't agree with the doctor's diagnosis," and he wanted to
remove Iris "from the hospital against medical advice." After medication was
given to Iris to counteract the withdrawal symptoms, Rick reacted with
3 Iris was diagnosed with Autism Spectrum Disorder and sensory processing difficulties. Anna has developmental delays and Ricky qualified for early intervention services.
A-3697-18T2 4 aggression towards hospital personnel, causing him to be ejected from the
hospital. Kim and Rick denied that Kim abused narcotics, Rick maintained
Kim could care for her child, they were uncooperative in the Division's
investigation, and aggressive towards its representatives.
The Division conducted a Dodd removal 4 in December 2014 and placed
Iris in a non-relative resource home. Although a Family Part judge approved
the removal, the judge later granted Rick physical custody of Iris , and
instructed the Division to maintain Iris's care and supervision. The judge
granted Kim supervised visits with Iris, with Rick not being allowed to
supervise.
On March 20, 2015, a judge held a fact-finding hearing, where he
concluded that Kim abused and neglected Iris by causing her to suffer
withdrawal symptoms at birth for which Iris was treated in the intensive care
unit of the hospital for twenty-two days. At the end of the hearing, the judge
granted, under an FD Docket, the continuation of supervised visits for Kim,
4 "A 'Dodd removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. 'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010).
A-3697-18T2 5 sole legal and physical custody to Rick, and terminated the FN litigation.
Afterwards, Rick and Iris temporarily moved to Puerto Rico in 2015. Kim
followed a few months later.
Anna was born in 2016 while the family continued to reside in Puerto
Rico. The Division could not determine whether Anna also tested positive for
drugs or suffered any withdrawals, but Rick denied that she did.
At the end of December 2016, the family moved back to New Jersey. At
that time, Rick and Iris lived with Rick's cousin, A.G., while Kim and Anna
lived with Rick's sister, D.G. When Rick was at work, Iris stayed with Kim,
Anna, and D.G. Kim and Rick maintained this arrangement until August 18,
2017.
On August 18, 2017, the Division received a referral that Kim was under
the influence of drugs while she was solely responsible for the care of Anna.
The referral came from a program provider who observed Kim passing out and
unable to communicate while she had her child with her. 5
Once again, Kim denied drug use, but admitted to using prescribed
medication for her anxiety and bipolar disorder. She refused to undergo any
5 Kim had to complete the program in order to be eligible for public assistance.
A-3697-18T2 6 drug screenings or sign a release which would allow the Division to access her
medical records. According to the caseworker, it was apparent that Kim was
abusing her medication because the caseworker observed that the prescription,
which was for sixty pills to be taken twice daily, had been filled only four days
earlier yet only one-half of the sixty pills were left in the bottle. Rick again
repeatedly denied to the Division that Kim had a drug problem and accused its
representatives of lying. He maintained that Kim could care for the children.
In addition to Kim's substance abuse issues, the family was homeless.
Kim informed the caseworker that she was homeless because she failed to
complete programs that were required for her to receive any public assistance.
Additionally, D.G. told the Division that the family lacked a permanent home
and while Rick was living at multiple locations, D.G. allowed Kim, Iris, and
Anna to stay with her.
On August 18, 2017, the Division conducted a Dodd removal of Iris and
Anna. A Family Part judge approved the removal based upon Kim's drug
abuse and, also, Kim's and Rick's lack of stable housing. Both children were
placed in a non-relative resource home, where they remained through the
guardianship trial.
A-3697-18T2 7 After Iris and Anna were removed, the Division arranged for defendants
to visit their children. However, Kim was not permitted to attend visitation
with Rick, and she initially failed to schedule a visit with the children despite
the Division's numerous attempts to contact Kim. Once a visit was scheduled,
Kim failed to attend.
The Division also conducted a family team meeting. Kim did not attend
the meeting. At the meeting, Rick denied that Kim had a substance abuse
problem and believed that the Division was lying about the situation.
Approximately two weeks later, on September 5, 2017, at a parent-child visit,
Kim refused to sign a document that outlined the steps she needed to take to be
reunified with her children and declined to submit to a hair follicle test. She
was also advised to submit to a random drug screening that day. Kim tested
positive for opiates and methadone.
Thereafter, a judge ordered both Kim and Rick to undergo psychological
evaluations and submit to random drug and alcohol screenings. Kim was
further ordered to undergo a substance abuse evaluation. The Division offered
them numerous services to address Kim's substance abuse, their mental health
issues, and their housing issues. Defendants were uncooperative and
belligerent in their resistance to what was being offered. At the time of the
A-3697-18T2 8 removal, Iris was suffering from significant dental issues that had not been
treated.
Later that month, Kim attempted to "reschedule" a random drug
screening. Eventually she underwent an evaluation at Substance Abuse
Initiative (SAI). There, Kim explained that she started abusing drugs at age
sixteen. She admitted to using drugs again around the time that her two eldest
children were removed, but stated that the drug use was due to pain "stemming
from a car accident and pass[ing] out in the bathroom[, which caused her to]
hit her head." The evaluator determined that Kim had both substance abuse
and mental health disorders.
In addition to attending that evaluation, by October 2017, Kim had
completed a psychological evaluation with Dr. Meryl E. Udell, a psychologist.6
Dr. Udell found Kim minimized her substance abuse and recommended that
she attend substance abuse treatment. Dr. Udell diagnosed Kim with opioid
use disorder and anxiety disorder with panic attacks. The doctor made
recommendations for numerous services, including: In-patient substance
abuse treatment; individual therapy to learn coping skills, with a higher level
of treatment than methadone maintenance including a Mentally Ill Chemical
6 Dr. Udell did not testify at trial and her report was not entered into evidence.
A-3697-18T2 9 Abuse (MICA) program to address her depression, anxiety, and substance
abuse; and that Kim "sign releases to allow the Division to track her progress
at any program she . . . enrolled [in] as she ha[d] a tendency" of being
untruthful. The doctor also recommended that Kim submit to a hair follicle
test and be subject to random urine drug screens "for one year after she
complete[d substance abuse treatment] to monitor her for relapse."
Following her evaluations, a Division worker contacted an SAI worker,
who informed the worker that Kim was attending Camden Treatment, where
Kim was receiving methadone treatment and she was also enrolled in an
intensive outpatient program. SAI recommended that Kim receive mental
health treatment from Oaks Integrated and see a psychiatrist for a prescription
for benzodiazepines instead of a family doctor. SAI also informed the
Division that Kim was attending a prenatal program for mothers who were
taking methadone.
However, on December 21, 2017, Kim was discharged from Camden
Treatment because she threatened a staff member. On December 26, 2017,
Kim failed to attend her intake appointment with a mobile methadone provider,
Urban Treatment, and, instead, Kim returned to Camden Treatment only to
threaten staff and spit at the receptionist. Ultimately, she was banned from
A-3697-18T2 10 Camden Treatment for a two-year period. However, Kim began receiving
therapy for her anxiety at Oaks Integrated on January 26, 2018, and by
February 21, 2018, she had already attended three sessions.
On February 6, 2018, Kim was ordered to sign releases for Camden
Treatment, Urban Treatment, and Oaks Integrated and to cooperate with her
mental health treatment. That same day a Title 30 summary hearing was
scheduled for April 16, 2018. Afterwards, Kim attended her SAI appointment,
but failed to complete the assessment and refused to reschedule. As a result,
SAI closed the case. The Division referred Kim for Services to Overcome
Drug Abuse Among Teenagers (SODAT) for random drug screenings. She
received a call on February 15, 2018, for an initial drug screening that had to
take place within twenty-four hours. Instead, on February 20, 2018, Kim
appeared at SODAT's office, seemed to be under the influence of drugs, and
was turned away.
Earlier, on February 16, 2018, a judge held a fact-finding hearing and
concluded that Kim had not abused or neglected Iris or Anna under Title 9. At
the time, the Division had not sought an abuse and neglect finding against
Rick. Iris and Anna remained in the Division's custody for care and
A-3697-18T2 11 supervision under a Title 30 action. 7
As to Rick, the Division provided him with a list of affordable housing
options. If Rick provided the Division with evidence of stable housing, and
the Division were to assess and approve the home, then Iris and Anna would
be returned to him. Although the Division made referrals, Rick at times
refused to participate in court ordered random drug screenings and never
looked for appropriate housing. Moreover, while lashing out at a Division
caseworker, Rick threatened to kill the judge who ordered the screenings.
Rick attended a psychological evaluation conducted by Dr. Carissa
Ferguson-Thomas.8 During the evaluation, Rick explained the issues he had
with controlling his anger. Rick denied that Kim had a drug problem and did
not plan to cease the relationship with Kim. He further denied minimizing
Kim's substance abuse issues but insisted that the Division's allegations were
7 While we were not provided with the complaint from the FN litigation, we assume that at the conclusion of the Title 9 action, the court converted the matter to a Title 30 action. See N.J. Div. of Youth & Family Servs v. T.S., 426 N.J. Super. 54, 66 (App. Div. 2012) ("[W]here the Division initially proceeded under Title 9 and Title 30, the dismissal of the Title 9 action due to a finding of no abuse or neglect requires a hearing as to whether an order of care and supervision should be entered under Title 30."). 8 Dr. Ferguson-Thomas did not testify at trial, but her reports were entered into evidence.
A-3697-18T2 12 baseless. Dr. Ferguson-Thomas recommended that since Rick planned on
parenting with Kim and living with her, he should "participate in a support
group for family members of addicts."
In March 2018, when Kim gave birth to Ricky, they both tested positive
for methadone and Xanax. Ricky was admitted to the neonatal intensive care
unit and was later transferred to a different facility to address his withdrawal
symptoms. The Division conducted an emergency removal of Ricky after Kim
refused to sign a release to verify with her doctor that she had a prescription
for Xanax. Ricky was placed in the same non-relative resource home as Iris
and Anna, where he remained throughout the guardianship trial. In April
2018, a judge approved the emergency removal and granted the Division
custody of Ricky.
On April 10, 2018, Kim was discharged from her outpatient treatment
program at Oaks Integrated because she was still addicted to drugs, which
made outpatient services ineffective.9 Thereafter, Kim requested that Oaks
Integrated not provide the Division with any information regarding her
medical records.
9 Throughout the litigation, when Kim participated in a drug screening, she always tested positive for Xanax and methadone, both of which she had been legally prescribed, and never for heroin.
A-3697-18T2 13 Later in April 2018, the court ordered that Rick attend an alcohol
education program because of a positive drug test revealing alcohol usage.
Kim also signed a release for Oaks Integrated but restricted the release to
"sessions [plus] how many [she] went to." In May 2018, Kim refused to
submit to a drug screening at SODAT. Later that same month, Kim told the
doctor who had been prescribing her Xanax that she was also taking
methadone. He warned her of the dangers of taking both drugs
simultaneously, informed her not to take Xanax with methadone, and requested
she participate in a psychiatric assessment. The Division was able to obtain
this information in July 2018 as Kim signed a release in relation to her medical
care from her primary care physician but restricted the release to information
pertaining to the dosage of her prescribed medication and attendance. The
month prior, Kim also signed a release for Urban treatment but restricted the
release to information pertaining to her counselor, her attendance , case notes,
and drug screenings.
Throughout the ensuing months, although their interaction with their
children was generally positive, defendants' visits with their children were
often minimally disruptive and at times chaotic. At various times, arguments
arose between Kim and the visitation providers or between Kim and Rick. On
A-3697-18T2 14 two occasions, as a result of Kim's and Rick's unintentional conduct, Anna
sustained injuries and had to be treated at a hospital's emergency room. When
the Division later referred the family to a therapeutic visitation program at
Oaks Integrated, during a family team meeting, Kim and Rick yelled at the
program's employee and Rick asserted that he would not participate in the
service. Furthermore, although a judge ordered Rick to participate in an
outpatient program for alcohol, he did not comply.
When the Division attempted to contact Camden Treatment regarding
Kim's treatment records on July 11, 2018, the program would not produce
them without a subpoena as a signed release would not be enough. That same
day, her counselor at Urban Treatment reported that Kim had attended the
program four times per week for methadone treatment but was not receiving
any mental health services there.
At a summary hearing held on August 9, 2018, the judge determined that
Kim was unable to care for the three children and that the Division would
retain care, supervision, and custody. The judge ordered Kim to attend a
MICA program, Rick to attend anger management, and both individuals to
participate in a domestic violence assessment. By December 6, 2018, Rick
never attended anger management.
A-3697-18T2 15 Visitation resumed through a therapeutic visitation program, but the
provider ended services to the family because its facilitator felt unsafe due to
Kim's and Rick's aggressive behavior during a visit. At that time, Kim and
Rick acted aggressively towards a security guard who was scanning Kim with
a metal detector wand. The security guard declined Kim and Rick entry into
the building, which caused Kim and Rick to behave in a hostile manner. In an
effort to provide the visitation, the facilitator offered to conduct the visit
outside at a picnic table, but Kim and Rick refused and acted aggressively
towards her, causing the facilitator to threaten to call the police. Ultimately,
the facilitator declined to continue the visit based upon Kim's and Rick's
behavior. At the end of the visit, Rick would not relinquish Anna. When the
facilitator moved away from Kim and Rick at the request of the security guard,
Kim followed her and started screaming at the facilitator, threatening to "bitch
slap" her, and telling the facilitator that she "better watch out."
Therapeutic visits were not the only service terminated by a provider.
On October 1, 2018, SAI closed Kim's case again due to her continued non-
compliance.
On October 3, 2018, the Division filed its guardianship complaint.
During an October 4, 2018 hearing, the Division reported that Kim was not
A-3697-18T2 16 compliant with her services. Again, a judge ordered Kim to attend MICA,
Rick to attend anger management, and both parties to attend a domestic
violence assessment. Although a Division caseworker met with Kim and Rick
to schedule a family team meeting, they later failed to attend.
A subsequent report from Kim's primary care physician, indicated that
the doctor consulted a statewide database for prescribers that showed another
doctor also wrote Xanax prescriptions for Kim. Although he had previously
told Kim to see a psychiatrist, he was unsure if she had done so.
Subsequently, when visitation resumed at the Division offices, it
improved for a short period before Kim and Rick once again behaved in a
disruptive manner. Specifically, in November 2018, two incidents occurred
when Kim and Rick arrived too late for their scheduled visit, which in one
instance caused them to argue, and in both instances, they left the office
without seeing their children. Subsequently, from December 2018 through
February 2019, the family did enjoy several positive visits without incident,
but still other visits were chaotic.
Meanwhile, throughout the litigation, the children were thriving in their
resource placement. For example, the resource mother, M.B., had been taking
Iris to occupational therapy and, also, Iris was on a waiting list for physical
A-3697-18T2 17 therapy. Iris's children's specialist saw her for one hour per week and was
going to increase the therapy to include additional services. Anna was
receiving early intervention services, including developmental intervention,
twice per week. For his part, Ricky was growing and sleeping through the
night. Moreover, when the children were sick, M.B. obtained appropriate
medical treatment.
In January 2019, Ronald S. Gruen, Ed.D., performed a bonding
evaluation among the three children and M.B. and later between them and their
parents. He also performed defendants' psychological evaluations.
Dr. Gruen determined that M.B. loved the children, the girls called her
"mommy," and she provided structure for them. Although Ricky was young,
he focused on M.B. and was comfortable with her. The children were
"thriving in her care" and he recommended that M.B. become their adoptive
mother.
During Dr. Gruen's bonding evaluation of Kim and Rick with the three
children, the doctor observed that Kim and Rick attended the evaluation with
toys and activities, and the children responded warmly to them even though the
visit was "hectic." Dr. Gruen stated that Kim "was focused on putting [the
toys and activities] together," which caused the children to run around without
A-3697-18T2 18 Kim's "direct supervision or attention." Both Iris and Anna were defying
Kim's and Rick's direction and instructions, and the parents had difficulty
focusing on one thing at a time. While Dr. Gruen found Rick to be "settled,"
he found Kim to be "anxious," and "tense." Dr. Gruen concluded that although
Kim and Rick loved their children, they were not qualified parents and the
termination of their rights would not cause significant emotional harm.
As to Kim's psychological evaluation, Dr. Gruen commented that Kim
was unfocused during the meeting. She avoided discussing difficult topics and
did not want to address her parenting inadequacies. Additionally, her
explanations for her parenting difficulties did not make sense and she denied
abusing drugs. Kim also could not understand her children's special needs,
and, instead, she stated that any special needs the children had were because
they "miss[ed] their parents, and [M.B.] allow[ed] the children to get out of
control." Overall, Kim could not parent the children in a satisfactory manner.
During Rick's psychological evaluation, he stated that the Division took
his children without reason and that neither he nor Kim had done anything
wrong. Moreover, he defended Kim and explained that he would remain in a
relationship with her. Rick discussed his stable job, the extensive travel
needed to get to his job, and that his job meant a lot to him. Rick admitted that
A-3697-18T2 19 he had a history of incarceration and criminal behavior. Dr. Gruen concluded
that in addition to the fact that Rick would not be the primary parent, he also
lacked good judgment in believing that Kim could be a proper parent to the
children.
Judge Axelrad presided over the guardianship trial for three non-
consecutive days in March 2019. At the trial, the Division presented the
testimony of Jacqueline Cassidy, a Division caseworker, and Dr. Gruen. The
Division also called Kim as a witness to testify for the limited purpose of
discussing her medical releases that she signed. She did not testify on her own
behalf, and neither she nor Rick submitted documentary evidence. Rick
testified on his own behalf.
Cassidy testified to the above and further about the Division's history
with Kim and Rick. She testified that Kim had always minimized, if not
completely denied her drug use, since she became known to the Division. She
described Kim's refusal to sign medical releases and to attend treatment
programs. When Kim signed a release, she placed significant restrictions on
them, rendering them useless for the Division's purposes.
Cassidy also described the problems that occurred during visitation, the
concern the Division had over the children's safety, the difficulty the
A-3697-18T2 20 Division's staff had communicating with Kim and Rick, and all of the services
that the Division referred both parents to without success. She made note of
the children's special needs and the services they received, which included:
Physical therapy; occupational therapy; individual in-home therapy; and
services at school, such as speech therapy. Finally, Cassidy described the
children's success in their resource home with M.B., who wanted to adopt
them. Cassidy explained that M.B.'s father lived with her, helped care for the
children, and was also a licensed resource parent. Meanwhile, while Kim and
Rick lived together, Rick worked a ten-hour shift four days per week and had a
two-hour commute to work each way. While at work, Rick wanted to leave
the children with Kim, who he thought would be a proper caretaker.
The Division called Kim as a witness and asked her to discuss the matter
of her medical releases. Kim admitted to signing the releases, but also to
writing in restrictions to prevent the Division from obtaining information.
Dr. Gruen testified to what he included in his report. He stated that
neither parent was capable of providing a minimal level of safe parenting. He
found that in addition to being unfocused during the evaluation, Kim avoided
uncomfortable topics and recreated her history to downplay her mental health
and substance abuse issues. During testing, Kim refused to complete certain
A-3697-18T2 21 evaluations, which caused Dr. Gruen to conclude that she would be unable to
provide the structure that the three young, special needs children required.
Moreover, she lacked patience and structure, and she did not possess adequate
decision-making abilities. Her untreated substance abuse problems prevented
her from parenting safely and effectively. Dr. Gruen stated that Kim would be
unable to focus on the children's needs, would be unable to watch them
properly, and was in denial about her parenting shortcomings, despite her
claims that she was a structured and disciplined parent. Rick would not be
able to assist Kim with childcare responsibilities because he worked long
hours and only came home to sleep. Overall, Dr. Gruen concluded that Kim
could not parent at the time of the evaluation or for the foreseeable future due
to her history of substance abuse and lack of direction.
As to Rick, Dr. Gruen similarly concluded that he would be unable to
parent the children safely for the foreseeable future. Rick showed poor
judgment by deciding that Kim would be the primary caretaker of the children.
He had a history of incarceration but denied current involvement in criminal
behavior. Rick failed to recognize why the children were removed and blamed
the Division for his problems. He rejected ideas and suggestions that were not
consistent with his viewpoint, believing that he knew best. Dr. Gruen testified
A-3697-18T2 22 about Rick's inability to understand that Kim could not cope with stress and
that there was a risk she would abuse drugs as she had done in the past.
Dr. Gruen was concerned that Rick's history of anger issues would
continue and be witnessed by the children to their detriment. Moreover, Rick
refused to accept that his children had special needs, which would hinder the
children's ability to receive proper care. In that vein, Rick had his own history
of neglect because he failed to properly care for Iris's dental needs. Overall,
Rick demonstrated a lack of insight and judgment.
During the bonding evaluation of defendants with the children, Dr.
Gruen testified that neither Iris nor Anna followed Kim's directions. Being
able to follow instructions was important for special needs children to keep
them safe and to educate them properly. While Rick tried to calm Kim down,
it was ineffective. Dr. Gruen believed there was a superficial bond between
the parents and the children did not recognize them as parental figures. The
children's attachment with Kim and Rick was insecure and could lead to
behavioral problems if reunification were to occur. He concluded the children
would not suffer severe and enduring harm if parental rights were terminated.
In contrast, Dr. Gruen testified that during the bonding evaluation among
the three children and M.B., the children followed her directions, were
A-3697-18T2 23 attentive, and remained focused. Moreover, the children benefited from the
structure and security M.B. provided. Dr. Gruen believed that M.B. loved the
children, and she was very nurturing. The children were well behaved in her
care. Dr. Gruen concluded that the three children were securely attached to
M.B. and that removal would cause them severe and enduring harm. Kim and
Rick would not be able to mitigate the harm.
Rick testified on his own behalf and claimed that he and Kim did
everything that the Division asked and more. Nevertheless, he admitted that
he did not complete services because it interfered with his work schedule and
personal time. He asserted that the Division falsified the claims against them.
Rick believed that the Division took his children away from him without a
reason, and he denied that the children had any problems. He thought that the
children would be fine once the Division was no longer involved in their lives.
Rick denied that he or Kim behaved poorly towards service providers or at
visitation and denied threatening workers and threatening to kill a judge.
While Rick complained that the Division had not assisted him with housing, he
admitted that he neither presented the Division with a potential apartment nor
requested financial assistance.
A-3697-18T2 24 On April 12, 2019, Judge Axelrad terminated Kim's and Rick's parental
rights to the three children. The judge placed her reasoning on the record in a
comprehensive, detailed oral decision. This appeal followed.
The scope of our review is limited. N.J. Div. of Youth & Family Servs.
v. G.L., 191 N.J. 596, 605 (2007). We "must defer to a trial judge's findings of
fact if supported by adequate, substantial, and credible evidence in the record."
Ibid. We "defer to the trial court's credibility determinations" and to its
"special expertise in the field of domestic relations." N.J. Div. of Youth &
Family Servs. v. R.G., 217 N.J. 527, 552-53 (2014) (quoting Cesare v. Cesare,
154 N.J. 394, 412 (1998)). We will not alter the trial court's findings unless
there was a manifest denial of justice. N.J. Div. of Youth & Family Servs. v.
V.K., 236 N.J. Super. 243, 255 (App. Div. 1989). However, the trial court's
interpretation of the law and legal findings are reviewed pursuant to a de novo
standard. R.G., 217 N.J. at 552.
At the outset, we acknowledge that an order terminating parental rights
represents a significant interference with substantial rights. Parents have a
constitutionally protected right to the care, custody, and control of their
children. Santosky v. Kramer, 455 U.S. 745, 753 (1982); In re Guardianship
of K.H.O., 161 N.J. 337, 346-47 (1999). "The rights to conceive and to raise
A-3697-18T2 25 one's children have been deemed 'essential,' 'basic civil rights . . . ,' and 'rights
far more precious . . . than property rights.'" Stanley v. Illinois, 405 U.S. 645,
651 (1972) (second alteration in original) (citations omitted). "[T]he
preservation and strengthening of family life is a matter of public concern as
being in the interests of the general welfare . . . ." N.J.S.A. 30:4C-1(a); see
also K.H.O., 161 N.J. at 347.
The constitutional right to the parental relationship, however, is not
absolute. R.G., 217 N.J. at 553; N.J. Div. of Youth & Family Servs. v. A.W.,
103 N.J. 591, 599 (1986), superseded by statute on other grounds, N.J.S.A.
9:3-46(a). At times, a parent's interest must yield to the State's obligation to
protect children from harm. N.J. Div. of Youth & Family Servs. v. G.M., 198
N.J. 382, 397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To
effectuate these concerns, the Legislature created a test for determining when a
parent's rights must be terminated in the child's best interests. N.J.S.A. 30:4C -
15.1(a) requires that the Division prove by clear and convincing evidence the
following four prongs:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to
A-3697-18T2 26 provide a safe and stable home for the child and the delay of permanent placement will add to the harm ...;
(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
See also A.W., 103 N.J. at 604-11.
The Division must prove each prong by the heightened standard. If one
prong is not proven, then the Division has failed to meet its burden. See N.J.
Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007).
Here, by way of a thorough oral decision, Judge Axelrad found the
Division demonstrated, through the submission of clear and convincing
evidence, that all four prongs supported termination of defendants' parental
rights. Since the judge's findings were supported by evidence she found
credible, we are obligated to defer to her findings. N.J. Div. of Youth &
Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012); Cesare, 154 N.J. at 413.
Judge Axelrad found that the Division proved the first two prongs.
Contrary to defendants' contention on appeal, the judge's consideration of
those two prongs together did not undermine the validity of her findings. See
A-3697-18T2 27 F.M., 211 N.J. at 451 ("The second prong, in many ways, addresses
considerations touched on in prong one."); In re Guardianship of DMH, 161
N.J. 365, 379 (1999) ("[E]vidence that supports [prong] one informs and may
support the other [prong] as part of the comprehensive basis for determining
the best interests of the child.").
As to the first prong, the judge relied upon Kim's history of unmitigated
substance abuse, her mental health issues, and her inability to recognize her
children's special needs, all of which prevented her from safely parenting her
children. The judge also relied on Rick's failure to acknowledge Kim's issues
and to continually assert that she was a proper caregiver for the children,
whose special needs Rick refused to accept and attributed only to the Division
making up lies. The judge also relied upon both parents' uncontrolled rage
directed at third parties and each other. In addition, the judge found support
for her findings in Dr. Gruen's unrefuted opinions. For all of those reasons,
the judge found that neither parent could safely care for the children.
Under prong two, the judge found that neither parent demonstrated a
willingness to address their problems because they refused to recognize
problems existed. Although they were offered numerous services, Kim and
A-3697-18T2 28 Rick refused to comply or they did so by lashing out and verbally assaulting
the Division's representatives and its providers' employees.
As to the third prong, before concluding the Division met its burden, the
judge delineated all of the services offered to defendants by the Division, and
she reviewed the individuals who the Division considered for placement in lieu
of perusing the termination of defendants' parental rights. Moreover, the judge
explained why the children's need for permanency trumped defendants'
suggestion that they should be allowed to pursue an alternative plan to
termination of their parental rights under the FN docket.
As to the fourth prong, after weighing all of the evidence and again
considering Dr. Gruen's opinion, the judge concluded that the children would
not "suffer a greater harm . . . [by] the termination of ties from their natural
[parents] than from the permanent disruption of the relationship with the
resource parent."
We conclude that all of the judge's findings were well supported by the
credible evidence in the record. We find defendants' arguments to be without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
This includes Rick's contentions about the judge's alleged prejudice and his
A-3697-18T2 29 attorney's failure to object, which arose from Judge Axelrad's passing
comment about Rick's threat to harm another judge.
Affirmed.
A-3697-18T2 30